A long-simmering debate over a powerful surveillance tool is coming to a head in Congress, where the House will vote as soon as Tuesday on rival bills to extend the expiring wiretapping law at the heart of the program.
The outcome of the showdown, which has scrambled the usual partisan lines, has far-reaching implications for national security and privacy. At issue is Section 702, a law that allows the government to conduct warrantless surveillance of foreigners abroad and sometimes sweeps in the private messages of Americans.
On one side is the more progressive wing of congressional Democrats, who have joined with harder-right Republican allies of former President Donald J. Trump to press for major restrictions on the use of the law. A Judiciary Committee bill would impose sharp limits while enhancing protections for Americans’ privacy rights.
On the other are centrists and national security hawks from both parties who instead back an Intelligence Committee bill that would impose more modest changes. They have denounced the more reform-minded legislation as likely to place the country in greater danger from terrorists, hackers, spies and other threats.
Only one of the bills can advance out of the House, where, in a sign of how unusual and politically volatile the debate is, Speaker Mike Johnson, Republican of Louisiana, is invoking a rarely used process in which both bills will get an up-or-down vote on the floor. Lawmakers will have no opportunity to offer amendments. Even if both bills receive a majority, only the one that receives more votes would be sent to the Senate.
Both lawmakers and outside allies — like privacy advocacy groups backing the Judiciary Committee version and former national security officials backing the Intelligence Committee version — have been sounding the alarm about the implications of each bill.
Backers of the Judiciary bill, for example, have tarred the Intelligence rival as a “wolf in sheep’s clothing,” as the Brennan Center for Justice put it, saying it would fail to rein in warrantless surveillance and would expand government spying powers.
Meanwhile, backers of the Intelligence bill say the Judiciary version is “seriously flawed,” as a letter on Monday signed by three dozen former senior national security officials put it, and would cripple the government’s ability to recognize and use information it has lawfully collected that could protect Americans.
“Usually when we disagree up here — and there are a lot of disagreements — the outcome of those disagreements are not really that consequential,” Representative Dan Crenshaw, Republican of Texas, said last week during a House Intelligence Committee hearing, adding, “This is the one big disagreement in Congress that should actually frighten the hell out of us.”
Judiciary Committee members have bristled at such criticism, arguing that the Intelligence Committee’s bill is too deferential to government agencies.
The Intelligence bill “just doesn’t go far enough,” Representative Jim Jordan, Republican of Ohio and the chairman of the Judiciary Committee, told reporters last week, adding, “We want to put some strong language in place to protect Americans’ privacy, and somehow that’s a bad thing to do?”
The focus of the debate is a surveillance law known as Section 702 of the Foreign Intelligence Surveillance Act, or FISA. First enacted in 2008, it legalized a form of the once-secret warrantless surveillance program the Bush administration started after the terrorist attacks of Sept. 11, 2001.
Under Section 702, the government is empowered to collect, without warrants and from domestic companies like AT&T and Google, the messages of noncitizens abroad — even when those targets are communicating with Americans. As a result, the government sometimes collects Americans’ private messages without a warrant.
Congress has acted several times — in 2012 and again in 2018 — to extend Section 702. The law is now set to lapse at the end of the month without new legislative action, although the surveillance program itself can lawfully keep operating until April.
But the law’s fate is less certain this year. Civil-liberties-minded Democrats long suspicious of the program have been joined by right-wing Republicans who have aligned themselves with Mr. Trump’s hostility to the F.B.I. because of the investigation into his 2016 campaign associates’ ties to Russia.
Disclosures that F.B.I. analysts had violated certain rules by conducting numerous searches for Americans’ information have helped fuel the push for significant overhauls. Already, the F.B.I. adopted internal reforms in 2021 and 2022 aimed at reducing such violations.
The Intelligence bill would extend Section 702 while codifying as law the F.B.I.’s internal changes and cutting down by 90 percent the number of bureau personnel with access to the raw database of intercepted communications.
The competing Judiciary bill would go much further, requiring officials to obtain a warrant before querying the repository using an American’s name or other identifier and further limiting how many officials have access to the data.
Privacy advocates and proponents of the Judiciary bill argue that warrants are necessary as a matter of constitutional principle and to avoid abuses. Biden administration officials have argued that such a rule would strip the program’s effectiveness and endanger the country, including against terrorist threats rising from the Israel-Hamas war.
“The bill emerging from the House Judiciary Committee effectively guts the core of 702 and severely limits our ability to protect the homeland,” said Joshua Geltzer, a White House national security official, adding that the administration strongly favored the rival bill.
There are many other significant differences in the bills.
For example, the Judiciary bill would bar the government from purchasing information about Americans from data brokers if it would require a warrant to get that same data directly from communications service providers. The Intelligence version does not address that issue.
The Judiciary bill would also winnow a list of crimes for which the government may use, as evidence in prosecutions, the private emails of American defendants that it collected without a warrant under Section 702, unless officials already had a warrant to scrutinize that citizen. Crimes like child pornography and human trafficking would no longer apply. Critics complain that if analysts, while looking at someone else, were to stumble across evidence that an American was involved in such crimes, the evidence would be off limits for courtroom use.
Yet another important difference is that the Intelligence bill — but not the House one — would expand the definition of what kind of company can be compelled to participate in Section 702 by making communications streams available to the government. Proponents of the House bill are characterizing this proposed expansion as an overreach.
The House and the Senate are also expected to vote this week on a defense authorization bill that would extend Section 702 without changes until mid-April. That would create a window for a surveillance court to issue new annual orders that would allow the program to operate through April 2025 — even if the underlying law lapses in the interim.
Members of the hard-right Freedom Caucus have blamed Mr. Johnson for allowing that short-term extension to be included in the defense bill, posing a political threat to the new speaker.
“Under no circumstances should an extension be attached to ‘must-pass’ legislation,” the group said in a statement last week, arguing that any Section 702 legislation “must be considered only with significant reforms and as a stand-alone measure.”
Mr. Johnson has tried to paint the defense bill’s extension as a low-stakes way to buy negotiators time. Although the program can apparently continue to lawfully operate until April 2024 under the annual orders the surveillance court issued last April, he has talked as if the program would simply stop if the statute lapses after New Year’s Eve.
“We can’t let it go dark while we’re working to forge this compromise to fix it,” Mr. Johnson said on Sunday on Fox News, describing Section 702 as a “critically important national security tool” while also expressing concerns over “how it had been abused.”
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